I. Under repeated decisions of this court, the indictment is a good one. It is in the form which has been approved in numerous cases. (Willson’s Cr. Forms, 388, p. 173.) Alleging, as it does, that the homicide was committed with malice aforethought, it was unnecessary to also allege that it was “ unlawful.” If committed with malice aforethought, it was- necessarily unlawful.
II. Several objections are urged to the charge of the court, which we shall not take time to discuss. Some of these objections are not supported by the record, and none of them are in our opinion well founded. We have carefully scrutinized the charge in the light of the objections made to it, and our conclusion is that it is a full and correct statement of the law applicable to the evidence, and is in no respect materially erroneous. It presents clearly the law upon every issue, and upon every phase of the defense raised by the evidence, and in as favorable a light for the defendant as the facts would justify. We think the defendant has no good ground of complaint against the charge.
III. The testimony of Mrs. Davis, that she had not invited defendant to her house; that there was bad feeling on her part toward defendant, and stating the cause of such bad feeling, should not have been admitted. It was irrelevant, and did not legitimately tend, in even a remote degree, to establish defendant’s guilt. We cannot say, however, that it was not calculated to prejudice the defendant in the minds of the jury. The "jury may have concluded from this evidence that the defendant was at Davis’s house when the kill*270ing occurred, wrongfully, or at least under circumstances which rendered it improper that he should be there. They may have concluded that the defendant had, by his conduct towards Mrs. Davis’s daughter and son-in-law, Buck Scales, given Mrs. Davis good cause to be at enmity with him, and that his presence at her. house on the occasion of the homicide was, under these circumstances, an insult to her and the Scaleses. His presence there, as shown by the evidence, was merely accidental,"™ not preconceived, and for no unlawful purpose. He went there with Mr. Davis, the head of the family, to look on at a children’s dance, and was quietly enjoying the scene when the difficulty between him and the deceased began. His presence at the house being thus explained, the testimony of Mrs. Davis, while it did not tend to prove malice or unlawful intent on the part of the defendant in going there, placed him in the attitude of an intruder upon the premises so far as she was concerned, and if her testimony was considered at all by the jury, it could have produced no other than an unfavorable impression upon their minds against the defendant.
IV. We are of the opinion that the testimony of the witness Prank Sanders, as to the conversation between him and deceased, should have been excluded. His answer was not responsive to the question propounded to him by defendant’s counsel, and cannot be regarded as having been elicited by the defendant. It was hearsay, and only admissible when offered or called for by the defendant, and it was not called for by the question propounded. It was testimony calculated to prejudice the defendant, as it tended to show a conspiracy on the part of defendant and others to kill the deceased, and was also in corroboration of the dying declaration of the deceased.
V. We are not prepared to say that the court erred in rejecting evidence offered by-defendant to prove statements made by him concerning the homicide, and the reasons which actuated him in committing it. These statements were made some ten or fifteen minutes after the killing, and after the defendant had gone a distance of four or five hundred yards. We do not think, under the circumstances of this case, that it should be held -that such statements were admissible as res gestee. To so hold would be opening the door for such testimony wider than it has ever yet been opened in this State. (Clark’s Cr. Law, 540, note; Pharr v. The State, 10 Texas Ct. App,, 485; Brunet v. The State, 12 Texas Ct. App., 521; Walker v. The State, 13 Texas Ct. App., 618; Neyland v. The State, id., 536.)
*271[Opinion delivered February 3, 1886,]VL It was improper in counsel for the State to discuss the character of the defendant, as his character was not put in issue by the evidence, and it was likewise improper to inject into the case the fact that defendant had at one time been arrested for robbery, and still more improper for State’s counsel to refer to this fact in his argument, when the court had excluded the evidence in relation to it. In view of these improprieties in the trial, we think the court, in order to prevent, as far as possible, any prejudice to the defendant by reason thereof, should have given the jury the special charge requested by defendant’s counsel, as to the presumption of the law concerning character.
Other questions than those we have discussed are presented in the record, and in the brief and argument of counsel for defendant, but they are questions of minor importance, and may not arise on another trial, and we therefore do not discuss or decide them.
In view of the errors which we have discussed, we do not think that the defendant has had a perfectly fair trial. We think it probable that the minds of the jury may have been influenced to h:s prejudice by the incompetent testimony admitted, and also by the improper remarks of counsel for the State in their addresses to the jury. The accused is entitled to a perfectly fair and impartial trial, in accordance wflth the rules of the law, and as we do not think, judging from the record, that this right has been fully accorded him, the judgment is reversed and the cause is remanded for another trial.
Reversed and, remanded»